As a delivered a charge to the jury, the advocate for the accused stated in open court, that the charge delivered should be printed in letters of gold and placed upon the walls of the court-house. criminal judge, he disdained to urge conviction; he sought only to discover the truth, and his great heart always throbbed to any appeal of humanity. The great qualities which he evinced as a criminal magistrate shine resplendent in his performance of his duties as a civil judge, and as I have stated, he possesses in the highest degree that rare quality which constitutes a great equity judge. Judge Truax is a nephew of the late Chauncey Shaffer, and was brought up in the office of that great advocate. He has now been fourteen years upon the bench, and during the greater part of that period has been assigned to duty in the Supreme Court. He is regarded as an excellent nisi prius judge, a man of hard common sense, and of considerable learning. He is very literary in his tastes, and has one of the best selected private libraries in the country. Judge Dugro, although a millionaire by inheritance, surrounded by every temptation to ease and indolence, is conspicuously energetic and industrious, and has devoted himself to his duties with an earnest desire to do justice between litigants. He is very popular with the bar and the people. Of the City Court, it can be said, with truth, that it has preserved the high standard and repute which it enjoyed when Judge McAdam left that tribunal to take his seat upon the bench of the Superior Court, and some of the opinions written by the judges of this court are regarded by the profession as among the ablest contributed by any court in the land. A great deal of malicious comment has been indulged in with reference to our Police and Civil Justices' Courts, but I doubt that any city of the Union of the comparative size of the metropolis, in its system of courts of inferior jurisdiction, presents an abler or more honorable body of men than those who sit upon the police bench and in the Civil Justices' Courts of our city. Upon the Police Court bench we have as lawyers, Grady, Feitner, Koch and Simms, who earned reputation and a sound and positive success at the bar. Others of the court, I believe, are taken from the ranks of the laity, but they are, without exception, men who understand the wants of the people, who can discriminate between the felonious and the unfortunate, and whose habits and experience of life enable them to deal justly and impartially with the important matters of business that come before them. Judge Hogan, while not an educated lawyer, has been for a great many years upon the Police Court bench, and by his experience, intelligence and studious habits, has made himself familiar with the criminal law, and to such an extent that it has excited the astonishment of lawyers. In regard to the Civil Justices' Courts, it can be truly said that the majority of them are presided over by men bred to the legal profession, who have been successful at the bar, and who are in every way competent to discharge the duties of their position. The Court of General Sessions is the greater criminal tribunal of the city of New York. Recorder Smyth is a famous character throughout the country. Before his elevation to the bench, he was a successful practitioner at the bar, and until the death of that gentleman was a partner of the late John McKeon, one of the ablest and most upright lawyers ever called to our bar. The remarkable fact exists that in all his years of service, Recorder Smyth was never reversed but once in the Court of Appeals, and in order to arrive at this reversal, that tribunal was compelled to reverse itself. It was stated by a citizen of New York on one occasion that Recorder Smyth and Inspector Byrnes had done more to make New York a law-abiding city than all the other legal and moral forces put together. While this may have been an expression of enthusiasm, still it indicates the high regard in which Recorder Smyth is held by the community in It is absolutely impossible for a which he lives. guilty man tried before this judge to escape. innocent man has every opportunity to do so; and still I doubt that the high character, the influence, experience, learning and ability of this jurist ought to be invoked either on one side or the other. An The law provides a public prosecutor, and in this county, as a rule, we have been served in that capacity by some of our ablest citizens. I think the battle between the people and the respondent should be fought by the lawyers, because the slightest intimation from such a man as Smyth, either in utterance or ruling, that the accused is guilty, is sufficient to annihilate his chance and hope of acquittal. Recorder Smyth has a warm heart, a generous nature, and invariably extends clemency to a convicted person when it appears that he is not an habitual criminal. Judge Cowing, although a Republican in politics, received the unanimous indorsements of both parties for re-election, and entered upon his second term of office without a dissenting voice. He is known everywhere for his humanity, his sympathy with the unfortunate, for his intelligence and accurate knowledge of law. Judge Fitzgerald was formerly an assistant district attorney and a public prosecutor of the county, and it is remarkable that he has left behind him the arts and persuasion of the public prosecutor. He sits only as the judge. Judge Martine is a member of a very old New York family of high social distinction, and was former district attorney of this county. It was during his administration that the "Boodle Aldermen" were prosecuted, convicted and sent to prison, after a series of remarkable legal struggles. From the district attorney's office he was elevated to the bench of the Court of General Sessions, and has served some six or eight years as judge of that tribunal. He has a son, Randolph B. Martine, Jr., who is now an assistant of the district attorney of the county. This young man is said to be of great promise. The public prosecutor of the county is John R. Fellows, a man of the first order of ability, and the most powerful advocate I ever heard in summing up a case for the prosecution. I believe many innocent men even, unconsciously to himself however, have been made the victims of his power. I repeat, that as a public prosecutor, I have never seen or met his equal. He is greatly dreaded by the bar who may have business in the criminal courts, and he is assisted by a group of very able and accomplished men, all of whom have individually won laurels in the prosecution of offenders. William H. Clark is at the head of the law department of the city of New York. He is counsel to the corporation. Of him it is sufficient to say that he has saved the city of New York during the administration of his office millions of dollars in litigated cases alone. He is regarded as a very safe and able consulting counsel. contempt of court, and the dispute has found its way into the columns of the National Magazine of Calcutta. In that land it is of course not the removal of the headgear, that is the turban-an inconvenient thing to be repeatedly doffing and donning--but the removal of the footgear which is a mark of respect when one enters the presence of a superior, and it has been the long-standing custom to wear slippers or sandals, which might easily be slipped off. But now the young lawyers are beginning to purchase patent-leather Oxford ties and seek to enter the court-rooms and try their cases without removing them. Whereupon the judges have issued an order that no "vakeel," that is, native advocate, be permitted to plead before them with his shoes on. EXAMINATION AND ADMISSION OF ATTORNEYS IN THE STATE OF NEW YORK. THE HE clerk of the Court of Appeals has sent out a circular letter asking for suggestions as to the revision of its rules in regard to the examination and admission of attorneys. The letter has been prepared in view of the fact that the following act became a law May 23, 1894: Section 1. Section 56 of the Code of Civil Procedure is hereby amended so as to read as follows: Section 56. Examination and admission of attorneys. — A citizen of the State, of full age, applying to be admitted to practice as an attorney or counsellor in the courts of record of the State, must be examined and licensed to practice as herein prescribed. A State board of law examiners is hereby created, to consist of three members of the bar, of at least ten years' standing, who shall be appointed from time to time by the Court of Appeals, and shall hold office as a member of such board for a term of three years, except under the first appointment, which shall be for terms of one, two and three years reSuch court spectively, until the appointment of his successor. shall prescribe rules providing for a uniform system of examination which shall govern such board of law examiners in the performance of its duties, and shall fix the compensation of its members. There shall be examinations of all persons applying for admission to practice as attorneys and counsellors at law at least twice in each year in each judicial department, and at such other times and places as the Court of Appeals may direct. Every person applying for such examination shall pay such fee, not to exceed $15, as may be fixed by the Court of Appeals as necessary to cover the costs of such examinations. On payment of one examination fee the applicant shall be entitled to the privilege of not exceeding three examinations. Such board shall certify to the General Term of the depart. ment in which each candidate has resided for the past six months every person who shall pass the examination, provided such person shall have in other respects complied with the rules regulating admission to practice as attorneys and counsellors, which fact shall be determined by said board before examination. Upon such certificate, if the General Term shall find that such person is of good moral character, it shall enter an order licensing and admitting him to practice as an attorney and counsellor in all the courts of the State. Race or sex shall constitute no cause for refusing any person examination or admission to practice. Any fraudulent act or representation by an applicant in connection with his application or admission shall be sufficient cause for the revocation of his license by the General Term granting the same. Such board shall render, during the month of January, an annual account of all their receipts and disbursements to the Court of Appeals. The Court of Appeals may make such provisions as it shall deem proper for admission of persons who have been ad mitted to practice in other States or countries. Section 2. This act shall go into effect, January 1, 1895, but the examiners may be appointed and the rules for examination adopted immediately. The most noteworthy clause perhaps is that throwing open the profession of the law to women. The Blue Book on marriage and divorce is said to contain singular facts, which may be regarded however as touchstones of civilization. In Russia, for instance, people may not wed a fourth time, nor after they are eighty years old. In France the wife whose husband objects seriously to her going on the stage makes herself liable to divorce by persisting in her artistic desire. In Germany and Roumania "insuperable aversion" is enough. But in Portugal civilization touches the high-water mark. There, if a wife publishes literary works without the husband's consent, the law frees him at once. Abstracts of Recent Decisions. CARRIER OF PASSENGERS-INCEPTION OF RELATION.-In Webster v. Fitchburg R. Co., decided in the Supreme Judicial Court of Massachusetts in May, 1894 (37 N. E. Rep. 165), it was held that a person, in possession of a ticket, who, while running from the street across the company's track outside the passenger station, apparently to catch a train about to start, is struck and killed by another train, has not become a passenger. CONSTITUTIONAL LAW-QUALIFICATION OF VOTERS. The right to vote is not an inherent or absolute right generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant. Subject to the limitations contained in the Federal Constitution, such right is under the control of the sovereign power of the State; and where the Constitution has conferred the right, and prescribed the qualifications of electors, the Legislature cannot change or add to them in any way, but where the Constitution does not TEMPORARY DISCHARGE OF confer the right to vote, or prescribe qualifications of voters, it is competent for the Legislature, as the representative of the law-making power of the State, to do so. State v. Dillon (Fla.), 14 South. Rep. 383. CRIMINAL TRIAL JURY.-In People v. Dinsmore, decided in the Supreme Court of California in May, 1894 (36 Pac. Rep. 661), it appeared that, after the impanelling of a jury and the commencement of a trial for rape, the jury was discharged for sixty-three days on motion of the State because one of its witnesses was unable to attend. Such course was held an abuse of discretion, necessitating a new trial. The court took into consideration the fact that the offense charged was likely to create prejudice against the defendant in the community from which the jury was drawn. EQUITABLE ASSIGNMENT. -In Morse v. Allen's Estate, decided by the Supreme Court of Michigan in March, 1894 (58 N. W. Rep. 327), it was held that an agreement between all persons interested in an estate, by which one of them was to care for testator's widow during her life for a compensation to be paid after her death out of the amount due her from her life interest in the estate, does not operate, as against the widow's creditors, as an equitable assignment to such one of the indebtedness due the widow from the estate. FEDERAL CONSTITUTIONAL LAW--IMPAIRING OBLIGATION OF CONTRACT-TAXATION OF BONDS OF FOREIGN CORPORATION.-In New York, L. E. & W. R. Co. v. Commonwealth of Pennsylvania, decided in the Supreme Court of the United States in May, 1894 (14 Sup. Ct. Rep. 952), it was held that an act passed by the Legislature of Pennsylvania in June, 1885, requiring corporations doing business in the State to deduct from the interest on their bonds owned by residents of the State, and pay to the State the tax imposed on such bonds by the act, impairs the obligation of the contract arising from previous statutes authorizing a foreign railway company to construct and operate part of its road through the State on payment of a certain annual sum, and other conditions, on which the company in good faith acted, in so far as said act requires the company to assess and collect, in the State of its creation, such tax on bonds issued before the act, under authority of that State, having interest coupons payable in that State only, both bonds and coupons being payable to bearer, as such duty cannot be imposed as an additional condition on the right acquired to maintain and operate the road, or as a regulation of the business or property of the company within the State. INSURANCE-CONDITIONS OF POLICY-VACANCY. The fact that the owner of a house, who lived alone in it, left it for two months, does not, as a matter of law, make it "vacant or unoccupied," within a condition in an insurance policy avoiding the insurance, should the premises become vacant or unoccupied, and so remain for ten days, if the absence was not intended to be permanent, and if, during the same, the house was visited daily by a neighbor, with whom the keys had been left. Hill v. Ohio Ins. Co. (Supreme Court of Mich.), 58 N. W. Rep. 359. INTERSTATE COMMERCE-BRIDGES OVER NAVIGABLE WATERS BETWEEN STATES-EMINENT DOMAIN. In Luxton v. North River Bridge Company, decided in the Supreme Court of the United States in May, 1894 (14 Sup. Ct. Rep. 891), it was held that Congress has power, directly or through a corporation created for the purpose, to construct bridges over navigable waters between States for the accommodation of interstate commerce by land. It was further specifically held that the act of Congress of July 11, 1890 (chap. 669), incorporating a bridge company, and authorizing it to construct a bridge and approaches across the Hudson river at the city of New York, "in order to facilitate interstate commerce," and providing for the condemnation of lands for the construction and maintenance of the bridge and its approaches, and for just compensation to the owners, is not unconstitutional because conferring the right of eminent domain on the com pany. WITNESS-REFRESHING MEMORY.-A manager of a firm's business, as a witness, cannot refresh his memory as to an indebtedness to the firm from its account books, when he did not make the entries, or see them made, nor assure himself of their correctness when the matters were fresh in his memory. --Fritz v. Burgiss (S. Car.), 19 S. E. Rep. 304. Notes. THE literature of breach of promise litigation is In the first law-case handled by the late William Walter Phelps his client was a pretty young woman, who claimed that the landlord of the house in which Tfull of interest. One of the latest reported she lodged had called after her one night as she cases is an action brought by a lady of past sixty against a mature recusant of seventy odd, who has been, she alleges, trifling with her affections. A remarkable case at the East grows out of the refusal entered her room, "There goes a thief." Mr. Phelps failed to prove his case, and it soon became evident that the charge was groundless. Then the oppos $50. Later Mr. Phelps met the foreman of the jury, of a widower to keep his promise because the prom-ing counsel began an insulting and tantalizing crossisee insisted on his removing from the parlor of his examination that greatly incensed not only the home the portrait of his first wife, deceased. plaintiff's attorney, but the spectators in the courtJudge Baker, of the Federal court in Indianapo-room, and the young woman burst into tears. The lis, laid down an important doctrine when he deci-judge, with stolid indifference, refused to interfere. The jury gave a verdict in favor of the woman for ded, in the case of one Murray, charged with contempt, that the politeness with which a threat is made does not make it any less a threat. "If in the night-time," the judge said, "a highwayman steps up and says, Please give me your purse,' or 'I will thank you for your purse,' I would understand it as a threat, notwithstanding the politeness. And so when a member of a strike committee, with an angry mob behind him of strikers, says to a man in the employ of the road, "Please, now, did you not ought to come out?" the court understands that as a threat." who volunteered the information: "We didn't believe that he called her a thief, and we didn't believe that you expected any damages, but you were so good-natured that we thought that we could give you damages enough to make the costs." "A few years ago," writes Judge Dillon, a cause arose in New Mexico, which involved the ownership of a line of railway from Yuma to El Paso, extending through Arizona, New Mexico and part of Texas. On the one side lawyers from New York and elsewhere went in a special car two thousand five hundred miles to Santa Fe, the place of trial. I had arranged a telegraphic circuit, and had sent over the wire to the local counsel the text of In Home Insurance Co. of New York v. Scales, decided in the Supreme Court of Mississippi in April, 1894 (15 South. Rep. 134), it was held that where tenants of a store building abandon it a short time before the lease expires, but retain the key by the entire bill of complaint. On arriving there, our permission of the owner, and leave a few empty car, which contained a parlor, dining-room, sleepbarrels and some old boxes and papers in the build-ing apartments and a kitchen, was placed upon the ing, it is "unoccupied," within the terms of an in-side-track of a railroad and served as a hotel; and surance policy. It was further held that it was immaterial that the local agent did not consider the building unoccupied, and for that reason did not issue a permit, and that, although the knowledge of the agent is imputable to the company, it is not liable, in the absence of any act by him as agent, after the house became vacant, by which the assured was misled. Some good stories are going the rounds concerning Sir Matthew Begbie, chief justice of British Columbia, who died the other day. Here is one of them: In 1883 a man was charged in Victoria with having killed another man with a sandbag, and in the face of the judge's summing up the jury brought in a verdict of not guilty. This annoyed the chief justice, who at once said: "Gentlemen of the jury, mind, that is your verdict, not mine. On your conscience will rest the stigma of returning such a disgraceful verdict. Many repetitions of such conduct as yours will make trial by jury a horrible farce and the city of Victoria a nest of immorality and crime. Go, I have nothing more to say to you." And then turning to the prisoner, the chief justice added: "You are discharged. Go and sandbag some of those jurymen; they deserve it." Westminster Gazette. immediately opposite to us, on another railroad, we saw a like car, containing counsel who had journeyed nearly two thousand miles from the West. There, in the heart and centre of the continent, in the shadow of the Rocky Mountains-in the old historic city of Sante Fe, which was founded more than two generations before the Mayflower landed at Plymouth, more than one hundred years before the first English colony sailed into the Ashley river— were those two movable habitations, one of which had come from the Atlantic, and the other from the Pacific, drawn up, as it were, in battle array. In an adobe building, one story high, with walls six feet thick, which had been the governor's palace under the Mexican régime, and which our government had converted into a court-house, with the old Baldy Mountains scalped and uncovered standing in silent majesty and stately grandeur looking down upon us, we fought for six long midsummer days our legal battle. We fought like lawyers, long and well —that is, earnestly contesting every inch of ground, but with mutual respect and courtesy; and then departed, the one party to the East and the other to the West, leaving our troubles behind us, or rather, having unloaded them in the court." The Albany Law Journal. ALBANY, AUGUST 4, 1894. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.} WE E have printed a revision of two speeches in favor of less than twelve jurors rendering a verdict in civil cases, the first by Judge Edwin Countryman, of Albany, and the second by M. Warley Platzek, of New York. Both are most interesting and instructive and show a degree of progressive thought which we would have been pleased to have noted in a majority of the convention, for the reason that we thoroughly sympathize with those who are desirous of expediting matters in the law and who are anxious to place litigation on a par with In business affairs so far as may be possible. appellate courts the whole number of judges are not necessary to render a decision, and many judgments in the Court of Appeals have stood or fallen by a majority of one. If questions of law are determined on appeal by a majority of one, why should not facts in civil causes be settled by nine or more jurors? The dikasteries provided under the system of legal procedure of Pericles were a body of from two hundred to two thousand jurors who decided by a majority vote both the law and the facts of a case submitted to them, and they were uncorrupt, public-minded and backed by sufficient force in the dikastery itself to add imposing weight to their decisions. In the Roman judicature, In the Roman judicature, the judices rendered decisions in accord with the judgment of the majority of the body, while at Rome the judex was the sole arbiter of the merits. The early stages of the development of the system demonstrate that a majority of witnesses composing the jury gave their determination, and that common-sense principles that all cannot view matters alike were carried No one hesitates to say but that there is more probability of reaching a true verdict by requiring twelve men to accord in their views, but nine should reach such a reasonable agreement that justice will be as well and more quickly subserved. VOL. 50 No. 5. Charles A. Reed of Boston has recently written an article on "Peaceable Boycotting," which has been the cause of much interesting discussion and has aroused a great deal of comment among lawyers. The cause, or at least the incentive, for writing the article arose from the decisions and rulings of the United States courts in relation to the recent labor troubles in the West, among the employees of the railfrom a logical as well as from an ethical standroads, and the position of the writer is tenable point. Although Mr. Reed expressly disclaims having ethical reasons for his arguments, he recognizes that a line of conduct may have every thing to condemn it ethically and yet be perfectly legal. He says: "In the struggle for life, the law should beware how it disarms one party and leaves the other armed and aggressive. To demand that the conduct of one section of the community shall be governed by a higher ethical standard than that of others, is to commit injustice. So that to say that the peaceable boycott is often oppressive is to say nothing to the purpose, very many of our industrial operations being of the same character." The author points out that property rights should not be allowed to encroach on personal rights, contending that such is the tendency, and maintains that history has shown that the great difficulty has been to keep a high national character in citizenship in continuity and accord with the increased material prosperity of the people. The true and proper incentive to combine should be for the interest of the parties acting rather than from inalice and a desire to better the condition of the unworthy and incompetent at the expense of the skilled artisan, and in the law, relief ought to be given the former party while the latter are properly met by the most unjust law that could be enacted or propounded by the courts. The English Conspiracy and Protection Act of 1875 contains the following provision: "An agreement or combination by two or more persons to do or to procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed. by one person would not be punished as a crime." Mr. Reed advocates this law, asserting that recent acts of employees are in line |